Sup. Ct. Rep. 533, where the action sounded wholly in tort, it was said (p. 703, L. ed. 322, Sup. Ct. Rep. 545): the United States from a decree of a district court dismissing the petition in a suit to enforce a final decree of confirmation of a California private land claim, entered on November 30, 1859, since, even if the provision of the court of appeals act of March 3, 1891, § 5, restricting direct appeals to certain excepted cases, of which this is not one, does not apply, the appellate jurisdiction of the Supreme Court over decrees of approval or correction in proceedings to confirm such claims was, by the express language of the act of July 1, 1864, § 3, taken away except as to cases where an appeal had already been taken. "The result is that by the law of Virginia the administrator has no right to maintain this action, and that by the statutes of the United States regulating the proceedings in this court he is not authorized to come in to prosecute this writ of error. The only verdict and judgment below were in favor of the defendant, who is not moving to have that judgment affirmed or set aside. The original plaintiff never recovered a verdict, judgment upon which might be entered or affirmed nunc pro tunc in his favor. the judgment below against him should now, upon the application of his administrator, Argued be reversed and the verdict set aside for error in the instructions to the jury, or, according to the old phrase, a venire de novo be awarded, no new trial could be had, because the action has abated by his death. trict of California to review an order disHemming v. Batchelor, L. R. 10 Exch. 54, missing the petition in a suit to enforce a 44 L. J. Exch. N. S. 54; Bowker v. Evans, decree of confirmation of a California priL. R. 15 Q. B. Div. 565; Spalding v. Cong-vate land claim. Dismissed. If don, 18 Wend. 543; Corbett v. Twenty-third "The necessary conclusion is that, the action having abated by the plaintiff's death, the entry must be writ of error dismissed." We are inclined to think that such is not [669]exactly the proper disposition to be made of this case, because in the plaintiff's cause of action is stated a claim for the recovery of a tax, which, as alleged, it has been # [No. 172.] February 26, 28, 1902. Decided APPEAL from the District Court of See same case below, 102 Fed. 1006. Statement by Mr. Justice Brown: *This is an appeal from an order of the [670] district court of the United States for the northern district of California sustaining a demurrer to and dismissing the petition of the appellants, interveners, who prayed that a certain decree of the above-named district court, made on November 30, 1859, be or dered to be executed. It appears that on January 31, 1852, cerwrongfully compelled to pay. While the tain persons by the name of Peralta precircuit court may not have jurisdiction of sented to and filed with the board of land an action for that claim on account of the commissioners, under the act of Congress "to small amount thereof, it would not be right ascertain and settle the private land claims to leave the present judgment as a bar to in the state of California," passed March 3, an action in a court that could take juris- 1851 (9 Stat. at L. 631, chap. 41), a petidiction. The proper judgment is, and it is tion for the confirmation of the rancho of so ordered, that the case be remanded to the San Antonio. Subsequently the four claimcircuit court, with instructions to set aside ants divided the lands among themselves in its judgment and enter one abating the ac- severalty, and the board, proceeding to extion by reason of the death of the defend-amine the claim upon the evidence, decided ant. Case No. 194, between the same parties, involves the same question, and will be disposed of in the same way. in favor of its validity, but restricted the area of the grant by fixing the northern boundary line at San Antonio creek, which included about one half of the claim. Both Mr. Justice Gray took no part in the de- claim was certified to the district court for parties appealed from this decision, and the cision of this case. MARY E. H. GWIN et al., Appts., บ. UNITED STATES. (See S. C. Reporter's ed. 669-675.) Direct appeal from district court-California private land claims. the northern district of California, in which court a transcript of the proceeding was filed September 23, 1854. The district court upon the trial reversed the decree of the land commissioners, and declared the claim as set forth in the petition to be valid, by decree entered January 26, 1855. From this decree the United States appealed to this court, which affirmed the decree of the district court (1857). United No direct appeal lies to the Supreme Court of States v. Peralta, 19 How. 343, 15 L. ed. 678. Two controversies were decided: First, that the estuary of San Antonio, up to the highest tide lands, through mesne conveyances from the state of California, and afterwards filed in court their exceptions to the survey. The United States also filed exceptions thereto. The litigation thus inaugurated continued for more than ten years, and fi nally resulted in a decree of the district court, August 4, 1871, approving a modified survey of the tract, a certified plat of which had been filed in the clerk's office. An appeal was taken from this decree by the United States to the circuit court for the ninth judicial circuit, by which court the appeal was dismissed July 31, 1874, and a decree entered that the claimants have leave to proceed under the decree confirming the survey as a final decree. The Commissioner of the General Land Office thereupon caused allowance of an appeal from a circuit to the f. When state law or Constitution is Supreme Court of the United States before the claimed to violate Federal Consti- | passage of the circuit court of appeals act, withtution. Afterwards, and on August 10, 1860, the surveyor general returned into court a corrected plat of a survey, purporting to be in conformity with the decree of November 30, 1859. Thereupon, and on October 8, 1860. [671]one Carpentier and others filed a petition of intervention, in which they claimed adversely so much land as lay under the waters of II. continued. III. Summary. I. General effect of the statute. By the express provisions of the 5th section existing circuit courts, direct to the Supreme "In any case in which the jurisdiction of the causes. "In cases of conviction of a capital or otherwise infamous crime. "In any case that involves the construction or application of the Constitution of the Unit ed States. "In any case In which the constitutionality of any law of the United States, or the validity or construction of any treaty made under its authority, is drawn in question. "In any case in which the Constitution or law of a state is claimed to be in contravention of the Constitution of the United States." This act went into immediate effect, so as to permit a writ of error from a final judgment of a circuit court on conviction of an infamous crime, by a sentence rendered on March 18, 1891. Re Claasen, 140 U. S. 200, 35 L. ed. 409, 11 Sup. Ct. Rep. 735. Provision was, however, made by the joint resolution of March 3, 1891 (26 Stat. at L. 1115), for the preservation of the existing jurisdiction of the Supreme Court over pending appeals, and in cases in which an appeal to that court should be taken before July 1 in that year. But no direct appeal in a case not within those specified in the 5th section of the act of March 3, 1891, can be taken from the circuit to the Supreme Court of the United States after the time limited by this joint resolution. National Exch. Bank v. Peters, 144 U. S. 570, 36 L. ed. 545, 12 Sup. Ct. Rep. 767; Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co. 159 U. S. 698, 40 L. ed. 311, 16 Sup. Ct. Rep. 189; Ogden v. United States, 148 U. S. 390, 37 L. ed. 493, 13 Sup. Ct. Rep. 602: Mason v. Pewabic Min. Co. 153 U. S. 361, 38 L. ed. 745, 14 Sup. Ct. Rep. 847. And notwithstanding this resolution, the mere out any steps taken to perfect such appeal, was in Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep. 4, held not to vest in the Supreme Court exclusive jurisdiction, so as to preclude the circuit court from vacating the order of allowance at the same term, and granting an appeal to the circuit court of appeals. So, an appeal from the circuit court of the United States, following the denial on February 17, 1892, of a rehearing, could, in a case in which the jurisdiction of that court depended solely upon diverse citizenship, only be taken to the circuit court of appeals, although an appeal before the motion for rehearing was made was, because allowed before the passage of the act of March 3, 1891, within the jurisdiction of the Supreme Court. Voorhees V. John T. Noye Mfg. Co. 151 U. S. 135, 38 L. ed. 101, 14 Sup. Ct. Rep. 295. And where a new decree was rendered by a circuit court after July 1, 1891, in pursuance of a mandate of the United States Supreme Court, which decree was in no sense such a mere execution or performance of the mandate as to be reviewable by mandamus, an appeal therefrom could, unless within the special provisions of March 3, 1891, § 5, only be taken to the circuit court of appeals. Nashua & L. R. Corp. v. Boston & L. R. Corp. 2 C. C. A. 542, 5 U. S. App. 97, 51 Fed. 929. So, misconstruction or disregard by the clrcuit court of a mandate of the Supreme Court of the United States could not give the right of appeal to the Supreme Court after July 1, 1891, in a case not within either of the classes speci fied in this section, although the original appeal was taken before that date, and therefore was within the jurisdiction of the Supreme Court. Mason v. Pewabic Min. Co. 153 U. S. 361, 38 L. ed. 745, 14 Sup. Ct. Rep. 847. But an appeal from a circuit court of the United States to the Supreme Court, taken prior to the passage of the act of March 3, 1891, was not governed by that act, although the citation was not signed or certified until subsequent to such enactment, as neither the signing nor the service of the citation is jurisdictional, its only office being to give notice to the appellee. Mattingly v. Northwestern Virginia R. Co. 158 U. S. 53, 39 L. ed. 894, 15 Sup. Ct. Rep. 725. The United States court in the Indian territory was, by act of March 3, 1891. § 13. placed on the same footing with regard to writs of error and appeals to the Supreme Court of be to be prepared and recorded a patent of the United States for that portion of the lands included in the survey. Thirty-seven years after the entry of the decree of November 30, 1859, and twentytwo years after the dismissal of the above appeal in the circuit court, the successors in title of one of the Peraltas presented to the Commissioner of the General Land Office, September 2, 1896, a plat of a survey of the rancho San Antonio made by the surveyor general of California, November 25, 1895, under the act of Congress of July 23, 1866 (14 Stat. at L. 218, chap. 219), with certified copies of the decree of November 30, 1859, with a request that he issue to the petitioners a patent in accordance with such plat of survey, which the Commissioner declined to do, September 22, 1896, and United States as that occupied by the circuit and district courts. McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118. But by the act of March 1, 1895 (28 Stat. at L. 693, chap. 145), a court of appeals was created in the Indian territory whose judgments are reviewable in the circuit court of appeals as judgments of circuit courts. In view of this enactment, the court, in Ansley v. Ainsworth, 180 U. S. 253, 45 L. ed. 517, 21 Sup. Ct. Rep. 364, held that an appeal to the Supreme Court of the United States from a United States court in the Indian territory, in a case which was not affected by the Indian appropriation act of July 1, 1898, providing for such appeals in certain specified cases, could no longer be taken under act of March 3, 1891, § 13, and that the appea! must be prosecuted to the court of appeals in the Indian territory. the Secretary of the Interior affirmed his decision. The appellants thereupon, and on July 27, 1899, filed in the district court for the northern district of California a petition of intervention in the original case of the United States v. Peralta, praying that the decree of November 30, 1859, might be ordered to be executed; that the government be required to issue to the appellants its patent for so much of the lands of the rancho as had not theretofore been patented to them, or any of them. The United States demurred to the petition, which on January 29, 1900, was dismissed. [99 Fed. 618.] *This was followed by another similar pe-[672] tition, filed March 29, 1900, based upon the survey of 1895, which was also demurred to, and resulted in a decree, rendered May 28, Ct. Rep. 173; Cincinnati Safe & Lock Co. v. Grand Rapids Safety Deposit Co. 146 U. S. 54, 36 L. ed. 885, 13 Sup. Ct. Rep. 13. This statement of the rule must be understood to refer only to cases in which the Jurisdiction of the lower court is not in issue, as, when that question is involved, the Supreme Court has jurisdiction by virtue of the 1st clause of the 5th section of the act of March 3, 1891. The rule is thus stated by Mr. Justice Gray in American Constr. Co. v. Jacksonville, T. & K. W. R. Co. 148 U. S. 372, 37 L. ed. 486, 13 Sup. Ct. Rep. 758: "The effect of these provisions is that, in any case in which the jurisdiction of the circuit court depends entirely on the citizenship of the parties (as in the cases now before us) and in which the jurisdiction of that court is not in issue, the appeal given from its judgments and decrees, whether final or interlocutory, lies to the circuit court of appeals only." The right of appeal from the judgments of circuit courts on habeas corpus directly to the Supreme Court of the United States still exists in any of the classes of cases designated in this section. Ex parte Lennon, 150 U. S. 393, 37 L. ed. 1120, 14 Sup. Ct. Rep. 123. In an earlier case it had been held that the Supreme Court of the United States was given no appellate jurisdiction of a capital case in the United States court for the northern district of the Indian territory by the provisions of the act of March 3, 1891, for direct appeals or writs of error from district or circuit courts in capital cases, and for appeals and writs of error from the decisions of the United States court in the Indian territory as from circuit or district courts, as, when that act was passed that court had no jurisdiction over capital crimes, and the act of March 3, 1891, could not be regarded as made applicable merely by reason of the extension, by the act of March 1, 1895, of its jurisdiction to capital cases. Brown v. United States, 171 U. S. 631, 43 L. United States in an action for cutting and cared. 312, 19 Sup. Ct. Rep. 56. No right to review the judgment of the supreme court of the District of Columbia In a criminal case was given the Supreme Court of the United States by the act of March 3, 1891, not withstanding the fact that by D. C. Rev. Stat. § 846, judgments of that court could be reviewed by the Supreme Court of the United States upon writ of error or appeal "in the same cases and in like manner as provided by law in reference to the final judgments, orders, and decrees of the circuit court of the United States." Re Heath, 144 U. S. 92, 36 L. eg. 358, 12 Sup. Ct. Rep. 615. But such appeals from decrees of circuit courts on habeas corpus since the act of March 3, 1891, cannot be so taken unless the case is one of those so designated. Cross v. Burke, 146 U. S. 82, 36 L. ed. 896, 13 Sup. Ct. Rep. 22. The Supreme Court of the United States was given no jurisdiction by the act of March 3. 1891, to review a judgment in favor of the rying away timber the property of the United States. Lutcher v. United States, 157 U. S. 427, 39 L. ed. 759, 15 Sup. Ct. Rep. 718. And by that act, the Supreme Court of the United States was deprived of its jurisdiction to entertain an appeal from the circuit court of the United States in a proceeding to enforce obedience to an order of the interstate commerce commission. Interstate Commerce Commission v. Atchison, T. & S. F. R. Co. 149 U. S. 264, 37 L. ed. 727, 4 Inters. Com. Rep. 347, 13 Sup. Ct. Rep. 837. A suit for a mandatory injunction by one railroad company against another to compel the granting of equal facilities to the former as to other connecting roads is not one which can be appealed from a circuit court to the Supreme Court of the United States under the act of March 3, 1891. Little Rock & M. R. Co. v. East Tennessee, V. & G. R. Co. 159 U. S. 638, 40 L. ed. 311, 16 Sup. Ct. Rep. 189. The jurisdiction of the Supreme Court of the United States to review the decrees of the circuit or district courts in cases dependent upon diverse citizenship was taken away by this act, except as preserved by the joint resolution of the same date in pending cases and cases wherein the writ of error or appeal should be sued out or taken before July 1, 1891. Wauton v. And the jurisdiction of the Supreme Court De Wolf, 142 U. S. 138, 35 L. ed. 965, 12 Sup. of the United States to review a judgment of 1900, sustaining the demurrer and dismissing the petition. Whereupon petitioners appealed to this court. 165, 18 L. ed. 851; United States v. Adams, 6 Wall. 107, 18 L. ed. 793. Appeal to this court was a portion of such relief. Mr. James T. Boyd argued the cause, Wherever mandamus will lie to compel and, with Mr. George A. King, filed a brief execution, appeal will also lie from an or for appellants on the question of jurisdic-der of the lower court refusing execution. tion: Presenting the claim under the act of 1851 was an acceptance of an offer by the United States to the claimants under the former governments, that if they would submit their claims of title to the investigation of these tribunals they should receive the like recognition as her own citizens were entitled to, under grants of land from this government, and established a vested right in the claimant to the relief provided for. Hancock v. Walsh, 3 Woods, 351, Fed. Cas. No. 6,012; Reichart v. Felps, 6 Wall. the circuit court in a case arising under the customs revenue laws of the United States was taken away by the act of March 3, 1891, unless the writ of error or appeal was sued out before July 1, 1891. Hubbard v. Soby, 146 U. S. 56, 36 L. ed. 886, 13 Sup. Ct. Rep. 13. The right to certificates of division of opinlon in criminal cases in circuit courts under U. S. Rev. Stat. §§ 651, 697, was also taken away by the act of March 3, 1891, which impliedly repeals those sections, and furnishes the exclusive rule in respect of the appellate jurisdiction of the Supreme Court on appeal, writ of error, or certificate. United States v. Rider, 163 U. S. 132, 41 L. ed. 101, 16 Sup. Ct. Rep. 983. And this is so whether such certificates of division of opinion between the judges of the circuit court in a criminal case are made at the request of the United States or of the accused. United States v. Hewecker, 164 U. S. 46, 41 L. ed. 345, 17 Sup. Ct. Rep. 18. The provisions of the earlier acts of Congress, imposing pecuniary limits upon the appellate jurisdiction of the Supreme Court over district and circuit courts, were superseded and repealed by the provisions of the act of March 3, 1891. The Paquete Habana, 175 U. S. 677, 44 L. ed. 320, 20 Sup. Ct. Rep. 290. The writ of error from the Supreme Court to a circuit court, provided for by the act of March 3, 1891, is a matter of right, and the citation can be signed by a justice of the Supreme Court of the United States. Re Claasen, 140 U. S. 200, 35 L. ed. 409, 11 Sup. Ct. Rep. 735. An appeal to the Supreme Court of the United States may be allowed by an associate justice of the court of private claims by virtue of 9 of the act creating that court, which provides for appeals in the same manner and upon the same conditions as appeals from the judgments of circuit courts, in which, by U. S. Rev. Stat. § 999, any judge of such court has the power to act. United States v. Pena, 175 U. S. 500, 44 L. ed. 251, 20 Sup. Ct. Rep. 165. The act of March 3, 1891, does not contemplate several separate appeals or writs of error by the same party in the same case and at the same time to or from two appellate courts. Columbus Constr. Co. v. Crane Co. 174 U. S. 600, 43 L. ed. 1102, 19 Sup. Ct. Rep. 721; Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745., 17 Sup. Ct. Rep. 343; Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Rep. 713: Cincinnati, H. & D. R. Co. v. Thiebaud. 177 U. S. 615, 44 L. ed. 911, 20 Sup. Ct. Rep. 822; Mc Perkins v. Fourniquet, 14 How. 328, 14 L. ed. 441; Chicago, D. & V. R. Co. v. Fosdick, 106 U. S. 47, 27 L. ed. 47, 1 Sup. Ct. Rep. 10; City Nat. Bank v. Hunter, 152 U. S. 515, 38 L. ed. 536, 14 Sup. Ct. Rep. 675; Central Nat. Bank v. Stevens, 169 U. S. 432, 42 L. ed. 807, 18 Sup. Ct. Rep. 403; Ex parte Union S. B. Co. 178 U. S. 317, 44 L. ed. 1084, 20 Sup. Ct. Rep. 904. See also Re Blake, 175 U. S. 114, 44 L. ed. 94, 20 Sup. Ct. Rep. 42. The act of 1891 is inapplicable to the case at bar because that act was limited to a disLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118. For this reason, an appeal to the Supreme Court of the United States from a circuit court on the ground that the jurisdiction of the cir cuit court is in issue was dismissed in Robinson v. Caldwell, 165 U. S. 359, 41 L. ed. 745, 17 Sup. Ct. Rep. 343, where the appellant had taken an appeal upon the whole case to the court of appeals, in which court the whole case was determined upon the merits, although the construction of a treaty and the constitutionality of the act of Congress were involved in the circuit court. So, in Carter v. Roberts, 177 U. S. 496, 44 L. ed. S61, 20 Sup. Ct. Rep. 713, a direct appeal to the Supreme Court of the United States from the decision of a circuit court involving a constitutional right was dismissed because the cause had been appealed to, and decided by, the circuit court of appeals. And a writ of error from the Supreme Court of the United States to a circuit court will be dismissed if taken while the case is pending in the circuit court of appeals on writ of errorfrom that court. Cincinnati, H. & D. R. Co. v. Thiebaud, 177 U. S. 615, 44 L. ed. 911, 20 Sup. Ct. Rep. 822; Columbus Constr. Co. v. Craue Co. 174 U. S. 600, 43 L. ed. 1102, 19 Sup. Ct. Rep. 721. But in a prior case in which there was some doubt whether a question was involved which would justify a direct appeal to the Supreme Court of the United States from the circuit court, the right to take such appeal, if it existed, was held not to be waived by taking an appeal also to the circuit court of appeals. Pullman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808. This case was distinguished in Columbus Constr. Co. v. Crane Co. 174 U. S. 600, 43 L. ed. 1102, 19 Sup. Ct. Rep. 721, supra, on the ground that in the earlier case the appeal was first taken to the Supreme Court, and accordingly the circuit court of appeals had declined, either to decide the case on the merits, or to dismiss the appeal while the case was pending on a prior appeal to the Supreme Court, and had continued the cause to await the result of that appeal. And in Carter v. Roberts, 177 U. S. 496, 44 L. ed. 861, 20 Sup. Ct. Rep. 713, supra, in addition to this ground of distinction, the court relied on the fact that the earlier case had been removed to the Supreme Court on certiorari to the circuit court of appeals, and the case had then been disposed of on the merits without passing on the question, which had be tribution of the "appellate jurisdiction of the national judicial system.' McLish v. Roff, 141 U. S. 661, 35 L. ed. 893, 12 Sup. Ct. Rep. 118. Messrs. James T. Boyd and George A. King and Messrs. Thayer & Rankin and Boyd & Fifield filed a brief for appellants on the merits. Mr. Matthew G. Reynolds argued the cause, and with Solicitor General Richards, filed a brief for appellee. [672] *Mr. Justice Brown delivered the opinion of the court: The appeal in this case is taken from the decree of May 28, 1900, sustaining the demurrer to, and dismissing the petition of, the appellants, which was filed March 29, 1900. Our jurisdiction of this appeal depends come immaterial, whether the direct appeal could have been maintained or not. The reasoning of these cases would seem to furnish an additional ground for the holding, in Aspen Min. & Smelting Co. v. Billings, 150 U. S. 31, 37 L. ed. 986, 14 Sup. Ct. Rep. 4, that no appeal lies to the Supreme Court of the United States from a decree entered by the cir cult court pursuant to a mandate from the circuit court of appeals; and that the only remedy is by review of the decree of the circuit court of appeals. And also for the decision in Webster v. Daly, 163 U. S. 155, 41 L. ed. 111, 16 Sup. Ct. Rep. 961, that because an appeal from a decree of a circuit court of the United States which affirms its own prior decree in obedience to a mandate from the circuit court of appeals, and declares that the decree of that court is made the decree of the circuit court, is not an appeal from the circuit court of appeals, but is an appeal from the circuit court, the Supreme Court of the United States has no jurisdiction thereof under the judiciary act of March 3, 1901, § 5, when the case does not fall within one or the other of the classes of cases therein enumerated. But the suing out by the plaintiff of a writ of error from the circuit court of the United States to the Supreme Court for the purpose of presenting a question of jurisdiction does not bar the right of the defendant to bring the case on the merits to the circuit court of appeals, but the cause in the latter court may be continued to await the decision of the Supreme Court upon the question of jurisdiction. Northern P. R. Co. v. Glaspell, 1 C. C. A. 327, 4 U. S. App. 238, 49 Fed. 482. And the mere fact that a writ of error has been sued out of the Supreme Court of the United States to review a judgment of a circuit court on the ground that it had no jurisdiction of the cause does not deprive the circuit court of appeals of its jurisdiction to review an order denying a new trial in such case, claimed under a state statute giving the defeated party in an action for recovery of possession of real property the right to a second trial. Shreve v. Cheesman, 16 C. C. A. 413, 32 U. S. App. 676, 689, 69 Fed. 785. See also United States v. Jahn, 155 U. S. 109, 39 L. ed. 87, 15 Sup. Ct. Rep. 39, infra, II. a. II. The designated classes of cases. Questions which can be raised under the 5th section of the judiciary act of 1891, for the purpose of a direct appeal to the Supreme Court from a circuit court, must be real and present controversies that are substantial, not upon certain statutes, which it becomes necessary to consider. By the original act of March 3, 1851 (9 Stat. at L. 631, chap. 41), to ascertain and settle the private land claims in the state of California, a commission of three persons was constituted (§ 1) to settle such claims, whose duty it was (§ 8) to decide upon their validity and to certify the same, with their reasons, to the district attorney of the United States. By § 9 an appeal was given to the district court, which was empowered to review the decision of the commissioners, and to decide upon the validity of such claim. By § 10 the district court was required, on applica tion of the party against whom judgment was rendered, to grant an appeal to the Supreme Court of the United States. It was held in United States v. Fossatt, 21 How. 445, 16 L. ed. 186, that the jurisdiction of only from the nature of the principles invoked, but from the relation to them of the party by whom they are invoked. Lampasas v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368. a. When jurisdiction is in issue. Only after final judgment in the cause can the Supreme Court of the United States exercise its appellate jurisdiction over a circuit or district court under the act of March 3, 1891, on the ground that the jurisdiction of such court is in issue. McLish v. Roff, 141 U. S. G61, 35 L. ed. 893, 12 Sup. Ct. Rep. 118. And the use of a certificate to present to the Supreme Court a question of the jurisdiction of a district court in an action arising under the bankruptcy act of July 1, 1898, is subject to the general limitations of the act of Congress of March 3, 1891, under which the trial court cannot, by certificate, send up a question as to its own jurisdiction until after final judg ment. Bardes v. First Nat. Bank, 175 U. S. 526, 44 L. ed. 261, 20 Sup. Ct. Rep. 196. An order of the circuit court remanding a cause to the state court is not a final judgment or decree from which an appeal can be taken to the Supreme Court of the United States to present the question of the jurisdiction of the court below. Joy v. Adelbert College, 146 U. S. 355, 36 L. ed. 1003, 13 Sup. Ct. Rep. 186. The jurisdiction of the district and circuit courts of the United States which, when in issue, will warrant direct review by the Supreme Court under the act of March 3, 1891, is a jurisdiction of such courts as Federal courts. Blythe v. Hinckley, 173 U. S. 501, 43 L. ed. 783, 19 Sup. Ct. Rep. 497. Hence, the Supreme Court of the United States cannot, on this ground, review a decree of the circuit court dismissing a suit on the ground that a judgment of the state court was a bar, and could not be reviewed by that court. Ibid. The jurisdiction of a circuit court is not so in issue within the meaning and intent of the act of March 3, 1891, as to give the Supreme Court appellate jurisdiction to review its decree, because it was contended therein that complainants had not, by their bill, made a case properly cognizable in a court of equity. World's Columbian Exposition V. United States, 6 C. C. A. 58, 18 U. S. App. 42, 56 Fed. 654; Smith v. McKay, 161 U. S. 355, 40 L. ed. 731, 16 Sup. Ct. Rep. 490. And a decision of the circuit court dismissing a bill on the ground that the remedy was at law, and not in equity, does not involve the |